(By Delegates Beach, Kelley, Cann and Amores)
[Introduced January 14, 1998; referred to the
Committee on the Judiciary.]

A BILL to amend chapter fifty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article seven-d, relating
to liability for damages claimed for the consumption of
donated food items; legislative findings; definitions;
limiting liability for persons, gleaners and nonprofit
corporations under certain circumstances; exceptions.

Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article seven-d, to read
as follows:ARTICLE 7D. GOOD SAMARITAN FOOD DONATION ACT.
§55-7D-1. Legislative findings.The Legislature finds that wholesale and retail food
distributors, shipping terminals and other establishments across
the state are disposing of food that could be made available to
those in need. However, many potential food donors are
discouraged from donating this food because of potential
liability. The United States Congress has recognized the need to
encourage food distributors to make otherwise disposed-of food
products available to those in need and has adopted the "Bill
Emerson Good Samaritan Food Donation Act." ( 42 U.S.C.A. § 1791)
This federal law encourages state and local governments to enact
good samaritan or donor liability limitation laws to encourage
private cooperative efforts to provide food for hungry people
within their respective jurisdictions. The Legislature finds
that this is a worthy goal, and therefore it is appropriate for
the state to encourage participation in food donation programs by
providing a statutory framework to protect food donators from
liability for their good faith efforts. §55-7D-2. Definitions.
As used in this section:
(a) "Apparently fit grocery product" means a grocery product
that meets all quality and labeling standards imposed by federal,
state and local laws and regulations even though the product may
not be readily marketable due to appearance, age, freshness, grade, size, surplus or other conditions.
(b) "Apparently wholesome food" means food that meets all
quality and labeling standards imposed by federal, state and
local laws and regulations even though the food may not be
readily marketable due to appearance, age, freshness, grade,
size, surplus or other conditions.
(c) "Donate" means to give without requiring anything of
monetary value from the recipient, except that the term includes
donations by one nonprofit organization to another nonprofit
organization, notwithstanding that the donor organization has
charged a nominal fee to the donee organization, if the ultimate
recipient or user is not required to give anything of monetary
value.
(d) "Food" means any raw, cooked, processed or prepared
edible substance, ice, beverage or ingredient used or intended
for use, in whole or in part, for human consumption.
(e) "Gleaner" means a person who harvests a donated
agricultural crop for free distribution to the needy or for
donation to a nonprofit organization for ultimate distribution to
the needy.
(f) "Grocery product" means a nonfood grocery product,
including disposable paper or plastic products, household
cleaning supplies, laundry detergent or other household item.
(g) "Gross negligence" means voluntary and conscious
conduct, including a failure to act, by a person who, at the time
of the conduct, knew that the conduct was likely to be harmful to
the health or well-being of another person.
(h) "Intentional misconduct" means conduct by a person with
knowledge, at the time of the conduct, that the conduct is
harmful to the health or well-being of another person.
(i) "Nonprofit organization" means an incorporated or
unincorporated entity that:
(1) Is operating for religious, charitable or educational
purposes; and
(2) Does not provide net earnings to or operate in any other
manner that inures to the benefit of, any officer, employee or
shareholder of the entity.
(j) "Person" means an individual, corporation, partnership,
organization, association or governmental entity, including a
retail grocer, wholesaler, hotel, motel, manufacturer,
restaurant, caterer, farmer, nonprofit food distributor or
hospital. In the case of a corporation, partnership,
organization, association or governmental entity, the term
includes an officer, director, partner, deacon, trustee, council
member or other elected or appointed individual responsible for
the governance of the entity. §55-7D-3. Limiting liability of persons or corporations who
donate food or grocery products; exceptions.
(a) A person or gleaner may not be subject to civil or
criminal liability arising from the nature, age, packaging or
condition of apparently wholesome food or an apparently fit
grocery product which the person or gleaner donates in good faith
to a nonprofit organization for ultimate distribution without
profit or gain to needy individuals: Provided, That this
limitation on liability does not apply to an injury to or the
death of an ultimate user or recipient of the food or grocery
product which results from an act or omission of the person or
gleaner which constitutes gross negligence or intentional
misconduct.
(b) A nonprofit organization may not be subject to civil or
criminal liability arising from the nature, age, packaging or
condition of apparently wholesome food or an apparently fit
grocery product which the nonprofit organization received as a
donation in good faith from a person or gleaner for ultimate
distribution without profit or gain to needy individuals:
Provided, That this limitation on liability does not apply to an
injury to or the death of an ultimate user or recipient of the
food or grocery product which results from an act or omission of
the nonprofit organization which constitutes gross negligence or intentional misconduct. §55-7D-4. Limitation of liability for landowners or occupiers
who allow collection or gleaning of donations; exceptions.
Any person who is a landowner or occupier and who allows the
collection or gleaning of donations on his or her property by
gleaners or representatives of a nonprofit organization, whether
paid or unpaid, for ultimate donation without profit or gain to
needy individuals may not be subject to civil or criminal
liability that arises due to the injury or death of the gleaner
or representative while engaged in collecting or gleaning on the
property: Provided, That this limitation on liability does not
apply to an injury or death that results from an act or omission
of the landowner or occupier which constitutes gross negligence
or intentional misconduct. §55-7D-5. Limitation of liability for donations which fail to
meet health standards; duty to provide notice; duty
to recondition donations; duty to adhere to health laws and regulations.
If some or all of the food or grocery products donated
pursuant to this article fail to meet quality or labeling
standards imposed by federal, state and local laws and
regulations, the person or gleaner who donates the food and grocery products or the nonprofit organization which distributes
the food or grocery products are not subject to civil or criminal
liability for the donation or the distribution: Provided, That
the donor discloses to the nonprofit organization which receives
the donated food or grocery products of the distressed or
defective condition of the donated food or grocery products; and
that the nonprofit organization agrees to recondition the donated
food or grocery products to comply with all the quality and
labeling standards prior to distribution; and that the nonprofit
organization is knowledgeable of the standards to recondition
properly the donated food or grocery product: Provided, however,
That this limitation on liability does not apply to an injury or
death that results from an act or omission of the person, gleaner
or nonprofit organization which constitutes gross negligence or
intentional misconduct. §55-7D-6. Construction.
Nothing in this article shall be construed to supersede
state or local health regulations.

NOTE: The purpose of this bill is to enact the Good
Samaritan Food Donation Act which would limit the liability of
those entities involved in the donation or distribution of food
or nongrocery items to the needy.

This article is new; therefore, strike-throughs and
underscoring have been omitted.